The Supreme Judicial Court held that the shortage is caused by inadequate compensation, and further that the Commonwealth does not have a license to pay poorly.

The landscape has changed, I suggest, and the real problem now is whether one violates the cannons of ethics in accepting a case, when to decline the case will result in the release of the client. A written request for an ethics opinion has been sent to Mr Crane, and many are concerned about the ethics of accepting cases — NOT as a job action, but does it violate our ethical duty to zealously represent the client.

Tom Workman

Comment in Response by David Giacalone:

Tom Workman, president of MACAA wrote to me this evening, saying that the Lavallee decision, by saying that the lawyer shortage was due to inadequate fees, somehow justifies continuing to refuse new cases.

I wrote back that the Lavallee case is about the rights of the defendants, not the legality of concerted boycotts or immunity for assigned counsel to dictate terms to the Legislature. The Court did not rule on whether joint boycotting and coercion are acceptable means to achieve the increased fees.

The Bristol County Bar Advocates group has also requested an advisory opinion from the Mass. Bar Counsel, in which they argue that it is unethical to take any indigent defense case, since defendants would otherwise be released from custody. This argument is specious and shameless.

On Aug. 4, the members of Bristol County Bar Advocates met and announced on their website “Bristol Bar Advocate Membership Meeting held: Consensus of members is that they cannot afford to take new cases.” This is clearly concerted conduct meant to discourage the members from taking new cases.

Even if the mantra that the State’s fees are lower than average overhead expenses were true, it would not justify a concerted decision to refuse new cases. [The numbers apparently come from national figures for small and medium law firms, which may not mirror the situation of the typical assigned counsel.] Nor does the overhead argument make sense economically for individual lawyers.

First, some assigned counsel have lower overhead (i.e., home office, no secretary, no library) and could “afford” in general to take the State’s fees — especially if private clients were also helping to meet expenses. Second, overhead does not go away if you don’t take new cases; it by definition stays the same.

As long as a lawyer has open time on his or her schedule, and no ready source of higher-paying clients, it is rational to take cases that pay more than the marginal cost involved in doing the work — that is, if the fee exceeds the increased out of pocket expenses from taking the assignments.

Without concerted activity (and pressure), a good number of bar advocates would be taking cases, out of duty, commitment or need.